Court hearing on Mike Peterson focuses on discredited SBI agent

ablythe@newsobserver.comApril 25, 2013 

— The blood analysis done by a discredited State Bureau of Investigation agent in the Michael Peterson murder case was the crux of an hourlong debate between lawyers at the state Court of Appeals on Wednesday.

On one side was Jim Cooney, the Charlotte attorney representing Peterson, the Durham novelist who remains between a state of freedom and captivity on accusations that he killed his wife in 2003.

Cooney argued that Duane Deaver, a blood analyst fired by the SBI two years ago, gave such false and misleading testimony on the stand in 2003 that Peterson’s trial was fatally flawed.

“We have a law enforcement officer who lied, and that is fundamentally wrong, and it violates due process,” Cooney said.

Lawyers from the state Attorney General’s office have asked that Peterson be sent back to prison, arguing that Orlando Hudson, Durham’s chief resident Superior Court judge, got it wrong when he tossed out the 2003 conviction. They contend that there was enough other evidence to implicate Peterson for the murder.

Peterson’s wife, Kathleen, was discovered dead and bloodied on Dec. 9, 2001, at the base of a staircase in the sprawling home the couple owned in Durham’s stately Forest Hills neighborhood.

Peterson, a former Durham mayoral candidate, insists he did not kill his wife; he contends that law enforcement got it wrong.

But prosecutors insist he is guilty.

Peterson was at the hearing Wednesday, flanked by David Rudolf, one of his trial attorneys, and Kerry Sutton, a Durham lawyer.

Lori Campbell and Candace Zamperini, sisters of Kathleen Peterson, sat on the other side of the courtroom as the arguments unfolded about a case that was tried almost a decade ago.

“Is it reasonable to believe, if Michael Peterson’s jury had known then what we know now about Agent Deaver, that it wouldn’t have had any material impact on their four days of deliberations? Of course not,” Cooney said. “Duane Deaver was essentially a fraud, and if they had known he was a fraud during this trial, it of course would have had a material impact.”

Weight of evidence

Robert Montgomery, special deputy attorney general, contended that Durham County prosecutors did not know Deaver was exaggerating his qualifications and experience with blood analysis cases at the Peterson trial. He further contended that prosecutors had no way of knowing that lab results that might have helped Peterson were not passed along, as was the SBI practice at the time.

“There’s no way something that happened in the future could be discovered and disclosed at trial,” Montgomery said.

A ruling to that effect, Montgomery argued, would put today’s prosecutors in the position of having to do extensive background checks of every witness.

Derrick Mertz, an assistant attorney general, also argued that Deaver was merely one of many witnesses who testified during the Peterson trial. He argued that other evidence from the medical examiner and other witnesses conflicted with the defense theory that Kathleen Peterson died from an accidental fall.

“The defendant’s theory that this was an accident is completely implausible,” Mertz said. “Even removing Deaver’s testimony altogether, there was overwhelming evidence that it was not an accident.”

Cooney said the court record from the Peterson case was 14,000 pages, and he used some of that to underscore his point about Deaver’s impact on the trial.

Cooney held up two file folders containing the trial transcript – and the one containing Deaver’s testimony was thicker than the folder containing testimony from all other witnesses.

“Agent Deaver was not only the critical witness, he was by far the largest witness, the most significant witness, the most important witness of this trial,” Cooney argued.

Uncertainty ahead

Montgomery said state attorneys would not defend Deaver’s actions, but they insisted that Peterson got a fair trial.

“There’s no right to a perfect trial,” Montgomery said. “It’s also important to have some finality to cases, and where there does not need to be a new trial, there should not be a new trial.”

It was unclear when the three-judge appeals court panel will rule. It can often take months.

Leon Stanback, Durham County’s acting district attorney, was at the hearing, but did not say what he would do if Hudson’s ruling were upheld.

Peterson declined to comment after the hearing, stating that he was acting on the advice of his lawyers. Under the pre-trial release agreement, he must be in his home from 11 p.m. to 7 a.m. and may not travel outside Durham, Wake or Orange counties without permission.

Kathleen Peterson’s sisters said they hoped not to have to go through another trial. But if the judges ruled in Mike Peterson’s favor, the sisters said, they would be ready. They added that there was enough evidence, without Deaver’s blood-spatter analysis, to lead a jury to the same decision.

Blythe: 919-836-4948

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